None shall be condemned without Due Process of Law.

Due process is the right to be treated fairly by law. Right of Personal Liberty to a common man who is neither Nobel, Aristocrat, Royal or Rich was conferred very late in the west. Following is the earliest known concept to England:

“That no Man of what Estate or Condition that he be, shall be put out of Land or Tenement, nor taken, nor imprisoned, nor disinherited, nor put to Death, without being brought in Answer by due Process of the Law.
( See: Liberty of Subject (1354) CHAPTER 3 28 Edw 3. The STATUTE of The Twenty-eighth Year of King Edward III.)

Original text of 28 Edw. 3; borrowed from: http://www.legislation.gov.uk/

On December 16, 1689, after death of King James-II, the Parliament of England passed a law called ‘Bill of Rights’ which not only dealt with civil liberties of people but also proclaimed supremacy of Parliament in various matters. These matters are:

1. That the pretended power of suspending of laws, or the execution of laws, by regal authority, without consent of parliament, is illegal.
2. That the pretended power of dispensing with laws, or the execution of laws, by regal authority, as it hath been assumed and exercised of late, is illegal.

3. That the commission for erecting the late court of commissioners for ecclesiastical causes, and all other commissions and courts of like nature are illegal and pernicious.

4. That levying money for or to the use of the crown, by pretence of prerogative, without grant of parliament, for longer time, or in other manner than the same is or shall be granted, is illegal.

5. That it is the right of the subjects to petition the King, and all commitments and prosecutions for such petitioning are illegal.

6. That the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of parliament, is against law.

7. That the subjects which are protestants, may have arms for their defence suitable to their conditions, and as allowed by law.

8. That election of members of parliament ought to be free.

9. That the freedom of speech, and debates or proceedings in parliament, ought not to be impeached or questioned in any court or place out of parliament.

10. That excessive bail ought not to be required, nor excessive fines imposed; nor cruel and unusual punishments inflicted.

11. That jurors ought to be duly impanelled and returned, and jurors which pass upon men in trials for high treason ought to be freeholders.

12. That all grants and promises of fines and forfeitures of particular persons before conviction, are illegal and void.

13. And that for redress of all grievances, and for the amending,
strengthening, and preserving of the laws, parliaments ought to be held frequently.

Please take note of clause 5 which covers Habeas Corpus.

In 1772 an Englishman Mr. Stewart bought a black slave in Jamaica and brought him to England. The name of slave was James Somerset. Once in England, the James refused to go back with Stewart. The slave was taken by force to the ship lying in river Thames and was placed in iron chains. The slave then applied for a writ of habeas corpus complaining illegal restraint on personal liberty. (See 20 State Trials 1-82 & Somerset v. Stewart (1772) Lofft 1-19 and wiki link here) Chief Justice of King’s Bench, Lord Mansfield who heard the writ observed that in the absence of any positive law (by Parliament), slavery can not be recognised in England. He ordered the slave to be free with following observation:

“Every man who comes into England is entitled to the protection of English Law, whatever oppression he may heretofore have suffered and whatever may be the colour of his skin. The air of England is too pure for any slave to breathe. Let the black go free.”

The aforesaid principle was incorporated in following words in the Constitution of United States in 1791 as Fifth Amendment:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

Supreme Court of United States has held that Fifth Amendment not only protects the procedural due process but also Substantial due process(SDP) which means that a duly enacted law can be struck down if it violates certain Constitutionally recognised principles. (Which is euphemism for stating that law which curtailed the liberties too far beyond the limits found reasonable by Supreme Court)

On 12th June 2008 the Supreme Court of United States, speaking about the right of aliens to invoke Habeas Corpus held:

Petitioners present a question not resolved by our earlier cases relating to the detention of aliens at Guantanamo: whether they have the constitutional privilege of habeas corpus, a privilege not to be withdrawn except in conformance with the Suspension Clause, Art. I, §9, cl. 2. We hold these petitioners do have the habeas corpus privilege. Congress has enacted a statute, the Detainee Treatment Act of 2005 (DTA), 119 Stat. 2739, that provides certain procedures for review of the detainees’ status. We hold that those procedures are not an adequate and effective substitute for habeas corpus. There-fore §7 of the Military Commissions Act of 2006 (MCA), 28 U. S. C. A. §2241(e) (Supp. 2007), operates as an unconstitutional suspension of the writ. We do not address whether the President has authority to detain these petitioners nor do we hold that the writ must issue. These and other questions regarding the legality of the detention are to be resolved in the first instance by the District Court.

However 4 years after the above judgement, Supreme Court has refused to hear appeals from seven of the 169 men being held in the military prison at a U.S. naval base in Cuba. The District Court quashed their detention holding that government’s intelligence report was unreliable. But Court of Appeal set aside this decision relying upon the secret intelligence report holding that there was presumption about its authenticity as it was an official act which is presumed to be regularly performed.
The Supreme Court of USA has refused to intervene in the matter without assigning any reason.
It appears that Supreme Court of USA is passing through its darkest hour which perhaps started with Bush v. Gore, 531 U.S. 98 (2000) wherein the court first stopped the recount of ballots and then ruled in favour of Bush on the ground of insufficient time to complete the counting of ballot.

The relevant question in respect of persons incarcerated is: How long these people termed as alien combatants would remain in custody? Forever? Do they get opportunity of producing the witness to disprove the secret intelligence reports? Even though the law does not and can not insist on negative proof.

In India relevant provision is article 21 of Constitution which is as under:

No person shall be deprived of his life or personal liberty except according to procedure established by law.

It was way back, in 1955 the Supreme Court of India held that even an alien/foreigner is also entitled to protection of above provision (see Hans Muller of Nurenburg v. Superintendent, Presidency Jain, Calcutta  (AIR 1955 SC 367):

Article 21 guarantees the protection of personal liberty to citizen and foreigner alike. No person can be deprived of his personal liberty except according to procedure established by law”, and article 22 prescribes the minimum that the procedure established by law must provide. There can be no arrest or detention without the person being produced before the nearest magistrate within twenty four hours, excluding the time necessary for the journey, etc., nor can he be detained beyond that period without the authority of a magistrate. The only exceptions are (1) enemy aliens and (2) “any person who is arrested or detained under any law providing for preventive detention”.

In 1975 the Government of the day, under the leadership of Mrs. Indira Gandhi had already declared State of Emergency and suspended fundamental rights. The Supreme Court of India in its ignoble judgement titled ADM Jabalpur v.S.S. Shukla, interpreted that not only the fundamental rights were suspended, by implication right of High Courts under article 226 to issue prerogative writs also stood suspended:

Liberty is confined and controlled by law, whether common law or statute. It is in the words of Burke a regulated freedom. It is not an abstract or absolute freedom. The safeguard of liberty is in the good sense of the people and in the system of representative and responsible government which has been evolved. If extraordinary powers are given, they are given because the emergency is extraordinary, and are limited to the period of the emergency.

And mocked at the prospect of possible abuse of powers by torture in custody:

There is no record of any life of an individual being taken away either in our country during emergency or in England or America during emergency in their countries. It can never be reasonably assumed that such a think will happen. Some instances from different countries were referred to by some counsel for the respondents as to what happened there when people were murdered in gas chambers or the people were otherwise murdered. Such instances are intend to produce a kind of terror and horror and are exhortative in character. People who have faith in themselves and in their country will not paint pictures of diabolic distortion and mendacious malignment of the governance of the country. Quite often arguments are heard that extreme examples the given to test the power. If there is power, extreme examples will neither add to the power nor rob the same. Extreme examples tend only to obfuscate reason and reality.

They could may also have relied upon the Peso’s Justice and ordered execution of the detainee to make the point but they were compassionate. Instead it was observed:

Article 21 is not a common law right. There was no pre-existing common Law remedy to habeas corpus. Further, no common law right which corresponds to a fundamental right can exist as a distinct right. apart from the fundamental right. (at p. 234)

The above para is factually incorrect. The constitution had saved all preexisting laws in force at the time of commencement of Constitution. And as a British dominion the laws of India were same as any British Colony. Due process which was the law enacted in 1354 and writ of Habeas Corpus was in force prior to Constitution, under Bill of Right, was saved by Letter Patent of each High Court. and in fact Habeas Corpus was a statutory remedy in Criminal Procedure Code of 1898 (replaced with Cr.P.C. of 1973 without this provision) which could be exercised by District Court. Further how misunderstood the subject was or how intellectually incapable the judges were, is visible from following passage which ignores even the Fifth Amendment to American Constitution, extracted here in above:

In America he right to the writ of Habeas Corpus is not expressly declared in the Constitution, but it is recognised in the provision Article 1 in section 9 clause (2) that the privilege of writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it. In America the power in suspend the privilege is a legislative power and the President cannot exercise it except as authorised by law. The suspension does not legalise what is doing while it continues. It merely suspends or the time this particular remedy. All other remedies for illegal arrests remain, and may be pursued against the parties making or continuing them.

It appears these judges had never heard the maxim let justice be done though the heavens fall (Fiat justitia ruat caelum). This judgement also held that an order of detention without trial under the Act could not be subjected to Judicial Review like any other order to test its validity, with following twisted reasoning:

An individual officer acting within the scope of his official duty would not cease to be so if he makes an order which is challenged to be not in compliance with the statute under which he is authorised to make the order. Any challenge to the order of detention would come within the fold of breach of fundamental right under Article 21, namely, deprivation of personal liberty.

The obligation of the Executive to act in accordance with the Act is ail obligation as laid down in Article 21. If such an obligation is not performed, the violation is of Article 21. It will mean that the right of the person affected will be a violation of fundamental right. The expression “for any other purpose” in Article 226 means for any purpose other than the enforcement of fundamental rights. A petition for habeas corpus by any person under Article 226 necessarily involves a question whether the detention is legal or illegal. An Executive action if challenged to be ultra vires a statute cannot be challenged by any person who is not aggrieved by any such ultra vires action.

Thus an order of incarceration without trial could not be challenged like an ordinary executive order on the grounds of Wednesbury unreasonableness. Which means that even if order of arrest is for John but the Patrick has been arrested, he has no judicial remedy. They may as well have ordered that all court rooms in the country be locked up, till further orders, to save unnecessary expenses. Justice Khanna delivered dissenting judgement (and subsequently resigned from the Supreme Court) with following eloquence:

Law of preventive detention, of detention without trial is an anathema to all those who love personal liberty. Such a law makes deep inroads into basic human freedoms which we all cherish and which occupy prime position among the higher values of life. It is therefore not surprising that those who have an abiding faith ill the rule of law and sanctity of personal liberty do not easily reconcile themselves with a law under which persons can be detained for long periods without trial. The proper forum for bringing to book those alleged to be guilty of the infraction of law and commission of crime, according to them, is the court of law where the correctness of the allegations can be gone into in the light of the evidence adduced at the trial. The vesting of power of detention without trial in the executive, the assert, has the effect of making the same authority both the prosecutor as well as the judge and is bound to result in arbitrariness.

It is unfortunate that majority decision in ADM Jabalpur case has not been expressly overruled. But recent sheepish comments from the Supreme Court by way of obiter dicta indicate that they are ready to treat this shameful judgment ‘no longer good law’. See following two excerpts:

In fact the dissent of Justice Khanna became the law of the land when, by virtue of the Forty Fourth Constitutional Amendment, Articles 20 and 21 were excluded from the purview of suspension during emergency. (Ramdeo Chauhan vs Bani Kant Das)

The Constitution (44th Amendment) Act also amended Article 359 of the Constitution to provide that even though other fundamental rights could be suspended during the emergency, rights conferred by Articles 20 and 21 could not be suspended. During emergency, the fundamental rights were read even more restrictively as interpreted by majority in Additional District Magistrate, Jabalpur v. Shivakant Shukla [(1976) 2 SCC 521]. The decision in Additional District Magistrate, Jabalpur about the restrictive reading of right to life and liberty stood impliedly overruled by various subsequent decisions. (I.R.Coelho vs State Of Tamil Nadu)

I am not aware what those subsequent decisions were which overruled the ADM Jabalpur case; as believed to be existing, in above Coelho decision rendered by a Nine Judge Bench. But the ld. Chief Justice who delivered that above Coelho order himself had passed one such order not about the life or liberty but sealing of property of people, which smacked of arbitrariness if not martial law. But that is other matter. Several later judgements relied on above ADM Jabalpur case . (See K. Anandan Nambiar v. Chief Secretary, Govt. of Madras) Another constitution bench expressly left it’s validity open.( See Attorney General For India vs Amratlal Prajivandas) Ignorance is such a bliss.

Humanity is on the thresh hold to evolve right principles to restore human liberties and to ensure that it is not trampled upon only on suspicion, secret reports, nationality or religion or attire alone. Those who are its custodians should not shriek their responsibility on petty short term goals.

This article has been compiled for the benefit of students of law in India especially those who find this subject of Habeas Corpus and due process,  confusing. Further more events taking place all over globe makes it to be right subject to remind us of; for we may not trample upon the liberties which are not ours. For more history on civil (properties and assets) liberties read Magna Carta.

© Sandeep Bhalla

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